United States v. German Espinoza Montero-Camargo, United States of America v. Lorenzo Sanchez-Guillen

America, UNITED STATES

Plaintiff-Appellee,

v. MONTERO-CAMARGO, Espinoza

German dant-Ap Defen pellant. America,

United States of

Plaintiff-Appellee, Sanchez-Guillen,

Lorenzo

Defendant-Appellant. 97-50643,

Nos. 97-50645.

United States Court of Appeals,

Ninth Circuit.

Argued and 10, Submitted Dec. May

Filed

Amended Aug.

Rehearing En Banc Granted Opinion

Withdrawn Oct.

Argued and Submitted Dec. April

Filed

H23 fendants, who were driving separate auto- tandem, mobiles made U-turns on a highway at only place where the view agents manning permanent sta- tionary checkpoint was obstructed. Fol- turns, lowing cars, the two both bear- ing Mexicali plates, license stopped briefly in an area that is often drop-off used as a pick-up point for undocumented aliens and contraband. The U-turns occurred shortly after passed the cars sign stating the previously closed Border Patrol facility was now open. Based on these and factors, other the district court concluded stop, which occurred fifty Stephen Hubachek, Assistant Federal border, miles north of the Mexican was Defender, California, Public Diego, San justified, as did the of the three defendant-appellant Lorenzo Sanchez- judge panel that considered question. Murray, Guillen. Harold Diego, G. San We took the case en banc to reconsider the California, defendant-appellant for German reasonable suspicion question. Although Espinoza Montero-Camargo. we affirm the result by reached both the Castetter, Bruce Assistant United district panel court and the majority, we Attorney, California, States Diego, for San. reject some of the factors on which plaintiff-appellee. the relied.

FACTS On the afternoon of October passing driver patrol told border agents at n the Highway permanent stationary checkpoint Centro, California, in El north, two heading cars with Mexicali li- HUG, Before: Judge, Chief plates,1 cense just had made U-turns on BROWNING, PREGERSON, highway the shortly checkpoint. before the . REINHARDT, KOZINSKI, T. G. Upon receiving tip, the two Border Patrol NELSON, KLEINFELD, HAWKINS, Agents, Brian Fisher,3 Johnson2 and Carl THOMAS, SILVERMAN, and got separate into patrol marked cars and McKEOWN, Judges. Circuit headed south investigate. Approxi- mately (and one minute later about one REINHARDT, Judge: Circuit mile from checkpoint), the agents the two The question before us is whether Bor- saw a blue Chevrolet Blazer and a red der Patrol agents had reasonable sedan, Nissan both with Mexicali plates, stop German Espinoza Montero-Camar- pull off the shoulder and high- re-enter the go and Lorenzo Sanehez-Guillen. The de- way heading south.4 1. Agent Border Patrol Brian Johnson years experience testified he had more than four at the Baja plates California or Mexicali Highway checkpoint. are orange plates distinctive with a darker letter background Johnson, and Agent "Front BC” embossed on the 3. Like Fisher testified that he plate. bottom of the had worked at the El Centro station for the employment duration of his with the Border Patrol, suppression hearing case, Johnson testified at the eight in this years. also over that he had worked at the El Centro station eight years the and a half he agents .had worked only pass The had seen one vehicle for the Border Patrol. checkpoint He also testified heading south in the min- ten reopened and had time closed for some the area agents, According to the by day or two earlier. is used the cars they first observed pick up and undoc- drop off lawbreakers hearing, Agent John- suppression At the drugs, while illegal aliens and umented people son testified pur- for such Its use inspection. evading checkpoint El through the Centro going fact that to the part is due poses makeup demographic This Hispanic. from highway area part view of region of which larger of the typical is blocked. Patrol Border Imperial In part. is a El city Centro Johnson, location, Agent according located, His- El Centro is County, where to turn where it is feasible only place is the popula- of the roughly 73% panics make Af- safely impunity. and with around both Bureau, “Popula- Census See tion. is in narrows road point, the ter that Race and for Counties tion Estimates highway checkpoint. view plain Agent July 1999.” Origin: desert open through runs itself pulled he also testified that Johnson either side. a fence on there is Blazer, he that both noted behind the all of that almost agents Both testified to be appeared passenger driver and Border Patrol made stops that when the stated Johnson Hispanic. discov- resulted turnaround site him noticed behind passenger driver involv- ...” sort “a violation of some ery of newspa- them, picked up passenger illegal aliens or narcotics.5 ing either This, according to reading. per began contrast, said that similar Johnson Agent Johnson, suspi- his further aroused Agent with turnarounds in connection made stops Blazer, stopped the then cions. Johnson did not result checkpoints other near Patrol as a Border himself identified He attrib- frequently. nearly as arrests citizenship of about asked agent, and travel- fact that to the the difference uted to John- In occupants. response the two camp- to their turnoffs routinely miss ers driver, Lorenzo San- the inquiries, son’s checkpoints. other near those sites ing Sylvia chez-Guillen, passenger, and his 86 check- Highway the northbound Before I- Renteria-Wolff, Agent showed Johnson exits, however, drive- no there are point, to cards, citizens allow Mexican might nearby that a driver ways, or roads the United 25 miles inside up to travel fact, only the exit accidentally pass by. at a 72 hours longer than for no States area is a private in that Highway 86 off of stopped been Blazer had As the time. Ranch, two Elmore driveway to the border, the miles from approximately point.6 turnaround miles from the to occupants brought the two Johnson then the saw that agents the place The where processing. for checkpoint the following the had U-turn stopped vehicles meantime, Fisher contin- Agent In the of the on the side area was deserted car, a red Nissan follow the second ued to the opposite highway located southbound Fisher, and he According to when sedan. advising side on the northbound large sign the two drew near first Agent Johnson open. As checkpoint was the drivers that As to accelerate. cars, began the Nissan testified, the sign the was Agent Johnson vehicle, could he up with the caught Fisher that northbound drivers indication to first to appeared driver also that second see the operation- facility was Border Patrol’s the ultimately pulled Fisher Hispanic. been checkpoint question had al. twelve approximately involved in had That he been tip received. was utes or so before vehicle, up not turn testified, of which stops, one did was a trac- agents semi contraband. aliens either undocumented tor-trailer. only one turn- Johnson, Agent Fisher testified been According Agent he had the result was he was aware stops of which around 15 to 20 personally in some involved drive- missing Ranch the Elmore spot driver over based on turnarounds way. eight years. Agent Fisher testified past after it following approxi- Nissan over In denying the motion to suppress, the mately Appellant four miles. German Es- district court govern- conceded that pinoza Montero-Camargo was the driver. weak,” ment’s case “was somewhat car, Fisher, stopping Agent After with that, concluded upon “all considering Johnson, Agent the aid of who had re- factors that pos- the officers had in their him, turned to help searched the trunk and session at the time that each of them made large bags marijuana. found two A stops, ... there was a sufficient found- subsequent search of the Blazer back at ed to make an investigatory the checkpoint turned a loaded .32 cali- factors, stop.” Those district court pistol glove compartment ber and an 1) them, categorized included: the tip clip pistol ammunition that fit the in the about a U-turn made in the middle of the passenger’s purse. highway just checkpoint by before the two Montero-Camargo, Sanchez-Guillen, 2) with plates; cars Mexican license and were charged Renteria-Wolff with alleged driving tandem and the Mexicali conspiracy marijuana possess with in- plates license which supported the infer- tent to distribute violation of 21 U.S.C. ence drawn the officers that these were 841(a)(1), §§ 846 possession and as well as 3) the two cars tipster; identified marijuana with intent distribute which, in question, area based on the 841(a)(1). § violation of 21 U.S.C. San- officers’ experience previous stops, is charged chez-Guillen was also with being “a spot notorious turn smugglers an illegal possession alien in of ammunition around inspection” just to avoid before the § in violation of 922(g)(5) 18 U.S.C. sign indicating first 924(a)(2) § aiding and abetting the 4) open; was fact the fact that carrying of a firearm during the commis- occupants of appeared both cars to be of sion of a drug trafficking crime in violation descent; 5) the fact that the 924(c)(1) (2). § of 18 U.S.C. passenger in the picked up Blazer a news- pre-trial three defendants filed a motion to paper as the ap- Border Patrol car suppress ground on the the vehicle proached. The judge district concluded stop was not suspi- based on reasonable that when these factors were considered cion. When the district court denied the light of the officers’ experience, they sup- motion, Montero-Camargo entered a con- ported finding of reasonable suspicion. guilty plea ditional to conspiracy pos- appeal, On Montero-Camargo and San- possession marijuana sess and with the argued chez-Guillen that the district court distribute; intent to he right reserved the erred in denying the motion suppress. to to challenge appeal two of the district The panel majority agreed, however, with determinations, court’s including the denial the district court’s conclusion. It did so suppress.7 the motion to Sanchez-Guil- by listing, without explication, further trial, len jury went to and a convicted him factors,9 number of including: apparent of conspiracy possess to possession distribute, checkpoint, avoidance of a marijuana driving, with the tandem intent to well being illegal plates, an alien in Mexicali license possession Hispanic ap- of ammunition. He raises a pearance number of occupants, vehicles’ the be- appeal.8 Renteria-Wolff, issues on havior of agent’s prior Renteria-Wolff, 7. 592, whose conviction is not at 9.In Rodriguez, United States v. 976 F.2d appeal party issue in this and who (9th Cir.1992), is not a to 594 we noted that "we must it, pled guilty being illegal an alien be watchful for mere rote citations of factors ammunition, possession of in violation of 18 held, situations, past which were in some 924(a)(2). 922(g)(5) § U.S.C. generated suspicion, leading reasonable supervening us to defer to the wisdom of a 8. only Because we consider here the reason- case not now before us.” suspicion able issue and reach the same result panel majority, panel as the opinion is reinstated as to all other issues.

H29 “must to articu- question similar turn- officer be able during stops after experience arounds, criminal activi- pattern unparticu- late than an ‘inchoate and more spot the two cars ty remote at the larized or ‘hunch’ of criminal suspicion’ — Although we reach same Wardlow, stopped.10 activity.” v. U.S. Illinois judge and the both district 673, result as -,-, 676, 120 S.Ct. 145 L.Ed.2d on the basis of a panel majority, do so (2000). Rather, suspicion 570 reasonable set of factors. more selective is of specific, exists when an officer aware which, articulable facts when considered ANALYSIS inferences, objective and reasonable Suspicion Reasonable Calculus suspicion. for particularized form basis “applies The Fourth Amendment Cortez, 411, v. See United States 449 U.S. including person, seizures of the (1981); all 418, 690, 101 66 L.Ed.2d 621 S.Ct. only a brief detention seizures involve Salinas, 392, 394 United States v. traditional arrest.” United States short of (9th Cir.1991). 873, 878, 422 95 Brignoni-Ponce,

v. U.S. requirement particular (1975). 2574, Ac 45 L.Ed.2d 607 S.Ct. encompasses suspicion ized two elements. the Fourth Amendment re cordingly, Cortez, 418, See 449 U.S. 101 S.Ct. be, aat mini quires that such seizures First, upon must be based assessment mum, order to satisfy “reasonable.” Id. In strictures, totality of the circumstances.11 Id. in the Fourth Amendment’s Second, that assessment must arouse stop by police may be vestigatory question suspicion particular if the has “a made officer reasonable or is supported person being stopped articu- has committed activity id.; that criminal see lable facts about to commit a crime. See Sokolow, Ohio, 18, v. 490 afoot....” United States 21 Terry v. 392 U.S. at n. 1, 7, 109 S.Ct. 104 L.Ed.2d (“[t]his U.S. specificity demand for S.Ct. 1868 omitted) (1989) (internal quotation (citing upon action information Ohio, v. S.Ct. Terry U.S. teaching central of this predicated is the (1968)). 1868, 20 L.Ed.2d 889 jurispru Fourth Amendment Court’s dence”). rejected Accordingly, we have probable Like cause determina “likely sweep many profiles that are tions, suspicion analysis is the reasonable ordinary generality suspi into a citizens usefully, ‘readily, “not even reduced to ” cious States v. appearance.... and, legal rules’” also like neat set Rodriguez, 976 F.2d 595-96 Cir. cause, probable into account takes the to 1992) cited in (concluding that Sokolow, 490 tality of the circumstances. carefully case-namely, man 7-8, (quoting Illi U.S. at S.Ct. 1581 driving suspen Ford with a worn an old Gates, 213, 232, 103 S.Ct. nois in his mirror rear view sion who looked (1983)). Although L.Ed.2d in a being by agents while followed suspicion required for the level of a brief many individu marked car-described “too stop investigatory demanding is less than suspicion that als to create a reasonable cause, probable for the Fourth that particular engaged defendant this was requires Amendment nevertheless an ob see States jective stop. activity”); criminal also United justification such See 1488, 7, result, 23 1492 Rodriguez-Sanchez, v. F.3d id. at 109 S.Ct. 1581. As however, by justified, original opinion simply stop may A be listed "ethnic- 10. The opinion was ity” quently as a factor. The subse- present to factors were reference amended, "ethnicity" the term stop was made. See United time the replaced "Hispanic appearance.” De- with L., 701, (9th 703 n. 2 States v. Robert F.2d however, way, either the factor is no scribed longer 1989). Cir. appropriate that is or one relevant analysis. suspicion” dis- the "reasonable See pp. 1131-35. cussion infra 1130

(9th Cir.1994) (holding that entirely reasonable sus- duct that innocuous when “on picion profiles cannot be based broad viewed in isolation may properly be consid suspicion categories arriving which cast on entire ered in at a determination that people suspicion without individualized reasonable suspicion exists. In United person Sokolow, particular stopped”). to be v. Supreme States Court held making that: “[i]n a determination of Brignoni-Ponce, In the Court probable cause the inquiry relevant is not might permis listed which officers particular whether conduct is ‘innocent’ or account in sibly deciding take into whether ‘guilty,’ but degree suspicion suspicion exists to a car. stop particular attaches to types of ‘noncriminal (1) include: Those factors characteris principle acts.’ That applies equally well they tics of the area which encounter suspicion inquiry.” the reasonable 490 (2) vehicle; proximity the vehicle’s to the 1, 10, 1581, U.S. 109 S.Ct. 104 L.Ed.2d 1 (3) border; of traffic patterns par on the (citations (1989) omitted) and footnotes ticular road and information previ about Gates, (quoting 213, Illinois v. 462 U.S. area; illegal crossings ous border in the 243-44, 13, 2317, n. 103 S.Ct. 76 L.Ed.2d (4) whether a certain kind of car is fre (1983)); 527 see also United States v. quently transport used to contraband or Franco-Munoz, 1055, 1057 (5) aliens; concealed the driver’s “erratic Cir.1991). short, conduct is not attempts behavior or obvious to evade offi necessarily indicative of criminal activity (6) cers;” heavily car loaded or an circumstances, may, in certain be relevant unusual passengers.12 number U.S. to the reasonable suspicion calculus. See 884-85, time, 95 S.Ct. 2574. With how — Wardlow, at -, S.Ct. ever, “[sjubsequent interpretations time, however, 677. At the same innocu highly these factors created a incon ous justify conduct does not an investigato law,” body given sistent we have ry stop unless there is other information varying weight varying them contexts. surrounding circumstances of which the Hernandez-Alvarado, States aware, which, police are when considered (9th Cir.1989). 1414, 1416 along with the otherwise innocuous con duct, As the list of factors set out in tend to indicate activity criminal has Brignoni-Ponce suggests, sometimes con- occurred or is about to place. take See Sokolow, 7, concurring colleagues 12. Our ask “what ex- (quot- 490 U.S. at 109 S.Ct. 1581 resorting totality-of-the cuse” "for to a Gates, 213, 232, exists ing Illinois v. 462 U.S. approach single circumstances when a factor (1983)). S.Ct. Finally, L.Ed.2d 527 justifies quarrel, ... alone the search.” Their matter, practical ignore as a we cannot however, us, is not with rather valid considerations on which our law en- See, Supreme facts e.g., and with the Court. actually rely. forcement officers 884-85, Brignoni-Ponce, 422 U.S. at S.Ct. The concurrence also criticizes the idea that and the set of factors listed in text. weight testified factors are of more officers relied on a substantial not, however, making stops. factors in approach number of than Ac- others. Our cordingly, suspicion the Court’s reasonable original implausible-let nor as alone as analysis requires totality of the circum- incomprehensible-as colleagues our esteemed Sokolow, approach. stances 490 U.S. at See, Sokolow, e.g., would have us think. 1581; Cortez, 109 S.Ct. 449 U.S. at U.S. at (noting 109 S.Ct. 1581 that the Moreover, although S.Ct. 690. the concur- degree differing that attaches to rence is correct multi-factor tests can Rather, types may vary). of noncriminal acts "troubling degree uncertainty introduce a eminently it seems reasonable to us that a ...,” unpredictability process into the the factor that often has innocent connotations- problem would discarding not be solved driving particular highway, a minivan aon follows, analytical approach the the Court example-should carry weight for less a than Supreme even were we free to do so. As the frequently implica- factor that has criminal noted, Court suspicion has reasonable deter- wearing tions-such as mask ski sum- 'readily, usefully, minations are "not or even day. " urge simplicity mer for is under- or, legal reduced to a neat set of rules' for standable, but unrealistic. matter, single that determinative factors.

H31 Ichiya newspaper glancing the after back at the Territory v. Guam People the of of (9th Cir.1988). Although agree su, 353, patrol cars.13 we with the 355 838 F.2d suspicion district court that reasonable did circumstances, “the officer In all investigatory stop, exist to an justify in light the facts his to assess is entitled conclude the factors on which some illegal entry and in experience detecting the court relied not relevant district are or 422 at Brignoni-Ponce, U.S. smuggling.” suspicion the appropriate to reasonable Nevertheless, 885, “[w]hile 95 S.Ct. 2574. analysis. considering begin by We the support may evaluate the facts an officer turning in category, before suspicion in of his ing light reasonable which district court address those may not used to experience, be experience considered. properly unbridled give the officers discretion INS, 797 F.2d stop.” Nicacio v. making a concluding that reasonable sus (9th 700, Cir.1986), part overruled 705 existed, court and picion both the district Hodgers-Durgin v. grounds in on other majority part upon panel relied (9th 1037, Vina, F.3d 1045 De La 199 Hispanic appearance of the three defen Cir.1999); v. Jime see also United States doing We hold that erred dants. (9th nez-Medina, F.3d 754 Cir. 173 Agent so. first note that Johnston We 1999). words, experi In other officer’s hearing suppression testified at the against background furnish the ence majority people pass through who are be facts as relevant checkpoints Hispanic, the El Centro Cortez, sessed, U.S. at see thus, presumably ap have as the he long as inferences S.Ct. pearance. reasonable; “ex objectively draws are earlier, As we stressed reasonable serve as an does not itself perience” particularized suspi suspicion requires suspi independent the reasonable factor — Wardlow, at -, cion. See U.S. analysis. cion 676; at see also Hernandez-Alvara S.Ct. Jimenez-Medina, do, the District 1417; 2. The Factors Considered F.2d at here, Where, Court 754. number) (or majority any substantial above, based As the district court noted characteristic, that specific share a people suspicion its determination reasonable probative characteristic is of little no 1) of factors: existed on series U- particularized and context- value in such checkpoint by the made turn before Rodriguez-San specific analysis.14 See 2) cars; and the driving two tandem chez, (holding reason F.3d at 1492 3) the area at plates; Mexicali license suspicion cannot based “on broad able a well- occurred included which the U-turn 4) on entire cat profiles suspicion which cast smugglers; drop-off point known without individual egories people Hispanic appearance of the three defen- 5) particular person suspicion ized dants; picking and Renteria-Wolffs Hispanic appearance refer to of their panel majority’s count reasons differed court, "Driving marginally stops while from those of district the reason for the being panel that the principal difference Yardley, Tir Mexican.” See Jim Some Texans appears Times, tandem Patrol, to have relied on Busy ing Border N.Y. Jan. plates as driving and inde- Mexicali license judge (noting state in Texas that one pendent factors in occupied territory that "it feels like said calculus, appears court while the district Residents, ..."); Ellingwood, Border Ken principally them to establish have relied on 21, 2000, Clash, Times, Angeles Jan. Los Staff tip in the the cars described link between part experiences on A3. Similar stopped by were the Border and the cars that given to the bet rise African-Americans Patrol. term, "Driving while Black.” See ter known Lambert, Washington articles, According newspaper to recent 1996). Cir. being stopped on persons tired of ac- 1132 put Rodriguez, not, we in stopped”). panic

be As it in appearance general, is approve are not prepared appropriate “[w]e factor. of persons seizure miscellaneous wholesale reaching conclusion, In our we are mind- suspi- ... in the of well-founded absence which, ful Brignoni-Ponce, quarter- of a individualized, particular, cion based on century ago, Supreme Court affirmed objectively observable which factors this court’s decision denial reversing the of person engaged that is indicate Brignoni suppress Ponce’s motion to (hold- criminal 976 activity.” F.2d at 596 a stop justified held that could be upheld be ing stop that a cannot case, ethnic In appearance alone. that justification tendered as are “calcu- Court held that if Patrol “[e]ven [Border to draw into law enforcement net lated to think enough officers] saw that the oc- generality persons a of unmarked descent, cupants were of Mexican this fac- really articulable basis reasonable sus- justify tor would alone neither a reason- ....”) added). picion (emphasis aliens, able that they belief were nor a in an The likelihood area reasonable belief car concealed majority-or which the even a substantial other aliens who illegally were the coun- part-of population Hispanic, any is giv try.” Brignoni-Ponce, at U.S. person Hispanic ancestry en is fact an S.Ct. In consisting 2574. a brief dictum alien, alien, illegal high let alone an is not sentence, only half a the Court went on to enough appearance make a state, however, ethnic appearance suspicion factor in the relevant could suspicion be a factor in a reasonable held, previously calculus.15 As we have calculus.16 probative

factors that such a have low In arriving sug the dictum value that no reasonable officer would have gesting appearance that ethnic could be investigative on relied them to make an relevant, the Court on disregarded heavily must a relied now- stop be as matter of Gonzalez-Rivera, law. See outdated demographic F.3d at information.17 Moreover, below, footnote, we explain His- the Court noted that: fact, justify subsequent 15. “It is well-known of which we part can referral to another notice, males, judicial checkpoint. take that Mexican driv- of the Border Patrol sedans, ing old model General Motors blend morning into the commuter traffic to trans- 17. We do not treat considered dicta from the port marijuana ports tons of from Rather, Mexican Supreme lightly. Court we accord it entry along in small towns Arizona-Sono- appropriate deference. See United States v. many Baird, ra It (9th Cir.1996) border. is also well known that (noting 85 F.3d thousands more Mexican males drive old Supreme that “we treat Court dicta with due every model work added). General Motors cars to (emphasis weAs have deference frequently acknowledged, Supreme ") morning. phenomenon might justify This dic Court checkpoint installation of a where all cars weight greater ta "have that is than ordi ., inspected. justify could but it does not nary judicial prophecy dicta as what stopping 'suspicious' looking hold”; random might accordingly, Court we do "not Salinas, cars....” 940 F.2d at 394-95. blandly shrug them off because were not holding.” a (9th Cir.1992) (Noonan, J., Steppe, Zal v. 968 F.2d later, year v. A United States concurring Martinez- Fuerte, 543, 563, Nevertheless, dissenting). 96 S.Ct. we occa (1976), Supreme L.Ed.2d 1116 Court Supreme held sion followed the Court's admoni that, it refer although "constitutional to motorists selective- “may tion dictum be followed fixed, ly” secondary inspection to a sufficiently persuasive,” area if "ought it not to stationary judgment on the basis criteria subsequent control suit States, roving-patrol “that stop Humphrey’s would not sustain ...” Executor 602, 627, ... even if it be assumed that such referrals 295 U.S. S.Ct. 79 L.Ed. (1935); see, largely INS, apparent are made on the e.g., Rabang v. basis 1611 1449, decision, ancestry.” Cir.1994). Here, Mexican however, The Court’s 1453-54 for rea above, predicated explain on the fact that sons we that the conclude stop initial of the motorist was lawful brief dictum to we allude should not particularized "no need exist” dictate the result here.

H33 largest the majority, single then at least figures the INS The census in the or in a state as whole group, in 1970 either provide registration alien number counties.18 Accord- significant Mexi- of about following information the. data, has the to the same California ing in the border population can-American any state- 1,619,064 Hispanic population of persons largest of There were States. (or 10,112,986 1998, 200,004 in Texas, at while Tex- estimated origin in Mexican As of approximately 6 million. this 12.4%) from as has registered as aliens of them Asians, minorities-Hispanics, blacks year, there were In Mexico Mexico. New Amerieans-comprise half of Native 119,049 origin, Mexican and and of persons 2021, residents; by Hispanics (or 8.5%) In 10,171 as California’s registered aliens. 239,811 expected larg- to be the Golden State’s persons of are were Arizona there (or 14.2%) of 34,075 group, making up about 40% the est origin, and Mexican in Today, Angeles Los population. In there as aliens. California state’s registered County, biggest is far the state’s 1,857,267 ori- which of Mexican persons were center, 20.4%) already (or Hispanics con- 379,951 population as registered gin, and largest single group.19 stitute aliens. 12, n. at 886 U.S. Brignoni-Ponce, are Hispanics One area where Centro, was handed Brignoni-Ponce majority S.Ct. 2574. in is El heavily 1975, years ago. twenty-five Agent down As stop. of the vehicle John site data demonstrate demographic Current of the acknowledged, son on which its premises through that the statistical El Centro pass people who applicable. longer no Hispanic. testimony dictum relies are is checkpoint are His nation, and of this Hispanic population general The de in turn corroborated more particu- and Far The pop West from that area. mographic Southwest data lar, County, least five- in which El enormously-at Imperial grown has ulation located, Hispanic. to in the In four referred is is 73% fold states Centro 1998, According County, Hispanics ac Supreme Imperial Court’s decision. Bureau, 1, 105,355 population of the total January as of counted for Census 144,051. according broadly, at near- More group stands population Furthermore, data, five California coun are census Southern Hispanics ly 34 million. than fifth of the are to more ties home heavily concentrated certain states Dick population.20 See becoming Hispanic minorities if nation’s area, grants apprehended ever, that same how- Hispanic populations of 18. Seven slates have 25,053 (less California, Texas, than 0.3% of was New more than 1 million: area). Florida, Illinois, population York, Hispanic See Jer- entire Arizona New id.; Combined, see also n.20 infra. sey. and Texas are California half the nation's His- home to more than Hispanic puts the 19. Current census estimates highest panic population. with the The states County 4.3 Angeles Los mil- population in Hispanics proportion of are New Mexico contrast, (non- In are 3.2 million lion. there (30%). (31%), (40%), and Texas California 927,000 people, Hispanic) people, black white data, According to the same Arizona has people. U.S. Cen- and 1.2 million Asian population-estimated at largest Hispanic third ethnicity different- Bureau treats race and sus 1,033,822. population result, is estimated Its white everyone system ly-as a under this 4,145,043. demograph- By if current of one of four classified as both member continue, Hispanics up black, will (white, ic make trends Indian groups American race Native, Pat majority of Arizona citizens. See & Island- Alaska or Asian Pacific and er) Racial, eth- Valley Melting Pot: Flannery, Hispanic or non-His- and also either region, Re- nic The Arizona panic. transform shifts Al, public, Jan. at A12. fact, Califor- of the lower Rio four counties Southern In the four border counties (Los County, Angeles County, Orange San valley, Hispanics make nia Grande 88% Bernardino) re- legal Diego, San are ranked nearly residents. See Yard- one million first, fifth, seventh, and Busy spectively tenth ley, Tiring Border Some Texans Patrol, Times, among in the United States the ten counties Jan. 2000. As of the N.Y. largest populations. illegal year, the number of immi- last fiscal Kirschten, The Emerging Minority, color-blind, Nat’l and neither knows nor toler ” J., 14, Aug. 1999. During the current ates among citizens,’ Croson, classes 488 decade, Hispanics will become the single 521, U.S. at 109 (Scalia, J., S.Ct. 706 con largest population group in Southern Cali- curring) (quoting Plessy v. Ferguson, 163 fornia, see A Count, Lesson in How to 537, 559, U.S. 1138, 16 41 S.Ct. L.Ed. 256 Economist, 13, 1999, The Ñov. (1896) (Harlan, J., dissenting)), the Su 2040, will make up 59% of Southern Cali- preme repeatedly Court has held that reli population. fornia’s Accordingly, Hispanic ance “on racial or ethnic criteria must appearance is of little or no in use deter- necessarily receive a searching most exam mining which particular individuals among ination to make sure that it does not con Hispanic the vast populace should be flict with guarantees.” constitutional Wy stopped by law enforcement officials on gant Ed., v. Jackson Bd. 267, 476 U.S. of the lookout illegal aliens.21 Reason- 273, 1842, 106 (1986) S.Ct. L.Ed.2d 90 260 suspicion able requires particularized sus- (quoting Klutznick, Fullilove v. 448 U.S. picion, and in an area in which a large 448, 491, 2758, 100 S.Ct. 65 L.Ed.2d 902 of people number share a specific charac- (1980)). In invalidating the use of racial teristic, that characteristic casts too wide classifications to remedy used past dis play any part net particularized Croson, crimination the Court applied suspicion reasonable determination.22 strict scrutiny, stating that rigorous its Moreover, the demographic changes we ness would ensure that: describe have accompanied been by signifi the means chosen “fit” this compelling changes cant in the restricting law the use goal closely so that there is little or no of race as a government criterion in deci possibility that the motive for the sion-making. classi- use of race and ethnici fication was ty illegitimate racial prejudice for such purposes has been severely or stereotype. limited. See Adarand Classifications based on Constructors v. Pena, 200, carry race 515 2097, danger stigmatic S.Ct. of harm. (1995); L.Ed.2d 158 City they Unless Richmond are strictly v. reserved for of Co., J.A. Croson 469, 488 U.S. settings, remedial they S.Ct. may in pro- fact (1989). 102 L.Ed.2d 854 Relying mote on notions of racial inferiority and “ the principle ‘[o]ur Constitution is lead politics to a of racial hostility. Brignoni-Ponce, In Supreme Court 22. As explain supra, Hispanic n. also noted that points "[t]he Government also appearance, or other racial or ethnic out that trained recognize officers can appearance, Caucasian, including may be appearance characteristic persons of who live suspected considered when the perpetrator Mexico, relying on such factors as the specific aof offense has been identified as mode dress and haircut.” 422 U.S. at having appearance. such an Even in such factors, however, S.Ct. Those circumstances, however, persons partic of a largely ignored courts, been of a appearance. lower in favor ular group racial or ethnic not be reading broader or Mexican stopped questioned ap because of such reaching holding, our we do pearance, unless there are other individual reject not the use of factors such dress or ized or particularized which, togeth haircut they when are relevant. Nor do we er with the racial or ethnic appearance preclude the use of racial appear- or ethnic identified, rise to the level of reasonable sus ance one factor relevant to reasonable sus- picion probable or To cause. the extent that picion probable or particular cause when prior our approved cases have the use of suspect has been having identified as specif- Hispanic appearance as a ic sian, factor where there appearance, racial or ethnic be it Cauca- was no African-American, particularized, suspicion, individual Hispanic or other. note, however, include, We are overruled. stop that a solely Such cases based the fact that are appearance racial limited to: ethnic United States v. Rodri guez-Sanchez, an individual matches Cir.1994); the racial or ethnic 23 F.3d 1488 description of a specific suspect Franco-Munoz, would not be States justified. Bautista, See United States v. (9th Cir.1991). (9th Cir.1982).

H35 Fourth, requirement Amendment’s Croson, S.Ct. 706. 488 U.S. at type harm danger stigraatic individualized affirmar- overbroad feared of the people Court the fact pose would is far programs tive action ques- pass through the who (cid:127) pronounced in context more are In order to answer that Hispanic. tion appearance ethnic race or stops which that, point at this question, we conclude So, too, consequences a factor. history, given the continu- our nation’s inferiority” the “poli- racial “notions of changes in our ing ethnic and racial com- hostility” that of racial Court tics is, gener- in positión, Hispanic appearance on or ethnic Stops to. based pointed race al, probative may little value that it of such message underlying send the appearance a not be considered as relevant factor that those who are to all our citizens particularized or individualized sus- their by the color of skin judged are white Moreover, conclude, picion required. we a clear mes- stops also send alone. Such indicated, that it is the reasons for enjoy a are not white those who sage that appropriate not an factor.25 also protection- of constitutional degree lesser now turn to factor We another to po- in assumed be that effect relies, namely and individuals sec- on which the United States criminals first tential an anomalous result ond.23 It would be behavior. Both dis Renteria-Wolffs it may race considered when hold that be as ma judge panel trict court well it helps not when people, harms jority concluded that Renteria-Wolffs be them.24 her specifically, picking up havior-mbre newspaper glancing patrol after car decide no broad

We constitutional the rear-view mirror-was a relevant fac Rather, here. we are confronted questions analysis. square of how tor the reasonable question narrow Boards, 551, stops Report 28 Colum. Hum. Rts. L.Rev. on race-based 23. his Interim Police, (1997) (summarizing of selec- Jersey State state’s 554—71 studies the New Attorney dispa- public that practices General concluded then tive law enforcement and Harris, “engen- them); and indeed existed rate treatment David The perceptions of A. fear, resentment, hostility, feelings Statistics, Stories, Why dered] and the Law: by minority Ver- and citizens.’’ P. Matters, mistrust “Driving 84 L. While Minn. Black" niero, Jersey, Attorney Harris, General New Inter- (1999) (id.); 265 David A. "Driv- Rev. Review Report of the State Police Team im ing Black" and All Other While Traffic Of- 4, Allegations Profiling 7 Regarding of Racial Supreme Court and Pretextual fenses: 20, 1999). police (April officers Even some Criminology Stops, 87 & J.Crim.L. Traffic acknowledge damage prac- done such 544, (1997) (discussing 4 559-71 cases of survey Angeles tices: a Los Police Davis, stops); Angela J. traffic racial bias in Department officers found that felt 25% Race, Stops, Cops, U. Miami L. Traffic " part (prejudice) of offi- 'racial bias 425, (1997) (summar- 431-32 nn. 41-51 Rev. minority currently exists cers citizens toward izing empirical evidence on the role race in negative be- interaction contributes civilians). stop and detain decisions to ” community.' Report police tween and the stops examples For of such in the Southern Independent Ange- Comm’n on the Los area, Kramer, generally see Price (1991). California Department 69 les Police Cir.2000); (9th Washington v. F.3d 1237 Lambert, 1181, (9th Cir.1996). significant body 24. A of research shows routinely improperly used as race is supra, explaining n. that race or defining Cf. proxy criminality, and is often the for ethnicity may properly factor when arrest, factor decisions officer’s committing or person who has been observed Anthony stop potential suspects. See or frisk having fleeing a crime is identified as from Thompson, Stopping Suspects: the Usual C. particular appearance, ethnic racial or Amendment, 74 L. Race and N.Y.U. the.Fourth suggesting individu- other that the (1999) (collecting sources Rev. nn. 1-3 to be have committed stopped al detailing plays role race in law enforce- (in search); or combination with his race ethnic- crime stop and also ment see decisions to Hecker, suspicion” justify ity) suffice to "reasonable and Pretextual Sean Race Traffic "probable cause.” Stops: Expanded Role Civilian Review An disagree. We In general, although eye Renteria-Wolff keep continued to eyes her contact, thereof, or the lack may be consid patrol on the car behind them after her ered a factor establishing glance, initial Agent might Johnson well suspicion, we have noted that whether the have found it equally suspicious-because suspicious contact is or not “is highly sub much, paid she too rather than too little jective and must be evaluated in light of is, attention to him. fact, It difficult to the circumstances of each case.” United imagine what Renteria-Wolff could have L., (9th States v. Robert 874 F.2d done at point might not have Cir.1989); see also Maga United States v. appeared suspicious to a Border Patrol na, Cir.1986); 797 F.2d Unit agent.27 It is for this very reason that we ed v. Pulido-Santoyo, States reached the conclusion we did then- (9th Cir.1978). The skepticism with Judge Kennedy’s opinion in Munoz. which this factor is treated is in large part recognize We its recent decision due to the fact that upon reliance “suspi Wardlow, the Supreme Court noted that cious” can easily looks so into devolve evasive behavior “pertinent be a fac do, you case of damned if equally damned tor in determining suspicion.” reasonable you if INS, don’t. See Gonzalez-Rivera v. — Wardlow, at -, U.S. 120 S.Ct. at 1441, (9th 22 Cir.1994); F.3d 1446-47 Ni However, 674. nothing Wardlow-ov the cacio, 704; 797 F.2d at see also United Supreme three Court cases it cites to illus Mallides, 859, States v. F.2d 473 4 861 n. trate that proposition-runs contrary to our (9th Cir.1973) cases). (collecting Accord conclusion that Renteria-Wolff s conduct ingly, we have noted that that is “of factor provides no basis for suspicion. reasonable questionable value ... generally.”26 The three earlier cases all Munoz, involved obvi United States v. 1160, 604 F.2d ous, (9th Cir.1979) unambiguous J.). attempts 1160 to evade con (per Kennedy, tact with law enforcement officials-conduct case, In Agent this Johnson testified very different from what was observed that, approached as he the Blazer from the Border Patrol agent as he followed the behind, he observed that Renteria-Wolff car in which Renteria-Wolff riding. was appeared to glance quickly in the rear view case, In the first namely Brignoni-Ponce, mirror before up a picking newspaper and the Supreme categorized Court evasive be reading it. It is unclear from the record havior as attempts “obvious to evade offi whether Johnson could in fact have seen cers” or to hide. Brignoni-Ponce, such a See glance 422 up he drove behind the 885, U.S. at Blazer. In 95 2574 any event, S.Ct. common, (emphasis it is a add if ed). universal, not In practice case, Sokolow, second pas- drivers and sengers alike to take note of a law Court held that enforce- evidence that the suspect ment vehicle coming up behind In them. took an evasive or path erratic through an fact, the most law-abiding of citizens fre- airport in an apparent attempt to avoid adjust quently driving their accordingly. police might also be relevant to the reason able suspicion Further, determination. See Soko we give weight no to the fact low, 490 that U.S. at 109 S.Ct. Sylvia In picked 1581. up Renteria-Wolff third, newspaper Florida v. Rodriguez, 1, 6, after glancing patrol at the 469 car. U.S. Agent (1984) Johnson suggest did S.Ct. not this L.Ed.2d (per action sought she curiam), to conceal her Supreme face so Court held that ar- that he would not recognize her. Had ticulable suspicion existed where three Indeed, cases, 26. suggested Moreover, we have 27. susceptible such behavior is to that it cannot be at all. considered Gon interpretations See different depending on one’s INS, cultures, zalez-Rivera culture. In some to directly at look Cir.1994) ("[u]nder law, Ninth Circuit a driv a person position in a of authority deeply is er's failure to look at others, the Border disrespectful; Patrol can directly not to look weigh not in the balance of person there gives whether impression rise to the existed reasonable suspicion for stop"). one is somehow dishonest.

H37 question then what factors af- is furtively among themselves spoke men them, appropriate relevant and to the are both approaching officers seeing ter suspicion analysis this reasonable case. during overheard one was twice where are, sense, in a certain Those factors inter “get the others to urging conversation woven, significance, draw their and three, here,” one of the out one The first of part, from another. these fact around at- Rodriguez, in turned to consider is the U-turn or turna S.Ct. id. at to flee. See tempted Ogilvie, In round.28 United States v. above, all cases de- As noted three (9th Cir.1975), this Court obvious-attempts actual-and scribed highway off the “turning held that hide from law enforcement or to evade not around themselves turning [are] itself, Moreover, officers. Wardlow ” suspicious.... Accordingly, proxim “the course, flight, which the headlong involved regard ity checkpoint, turn to the “the act of eva- consummate Court termed — legality checkpoint, [is] less at-, Wardlow, ...” sion. on which to rest foundation suggest We do not mean S.Ct. sufficient suspicion.” (emphasis Id. add param- cases outer that these establish ed). Rath- behavior. eters for what evasive er, glancing we conclude decision, panel picking then rear view mirror and dissenting judge disagreed is not. Such actions newspaper read Ogilvie prohibited whether reliance conduct not the sort of evasive simply in this case. We side with the U-turn prop- has held is Supreme that the Court it does majority and conclude that not. calcu- part suspicion of the reasonable erly that Ogilvie simply holds a turnaround it lus, suggest that was nor did officers in itself enough alone is not and of to they had observed in type Ogilvie, of behavior see suspicion,29 create reasonable Indeed, afoot. Ac- past wrongdoing subsequent was at in when 332. that, decisions, we like has it clear that cordingly, conclude this Court made with factors Renteria-Wolffs behavior was a turnaround combined other appearance, a appropriate may part a or factor to be considered as reasonable not relevant analysis. suspi- suspicion See United States determining in reasonable consider Garcia-Barron, (9th F.3d 1307 cion. contrast, Wardlow, flight clearly was In in attempts make much 28. The concurrence to "U-turn,” the, response sighting of the term to defendant's of our use a direct Third, concurring perceive colleagues Ogilvie, our in no difference other officers. "turnaround”, gener- a a more it and between the oth- factors existed that would have made alia, includes, U-tums. In al that inter term suspicious, turnaround while erwise innocent past, the broader we have sometimes used Wardlow, other factors contributed in several to that oc- term to refer reversals-in-direction degree suspicion that attached to to ramp uses an exit cur when a defendant earlier, we in- Wardlow’s actions. As noted course, change Ogilvie, overpass as in or to justify investiga- not an nocuous conduct does driveway, a and then turns onto road or off tory stop absent other circumstances came. the most heads whence he For back activity has tend to indicate that criminal part opinion, we use term U-turn in this place. See or is about to take Ichi- occurred accurately believe it more de- because we fact, yasu, Ogilvie In was F.2d at transpired. what scribes explicitly predicated on absence other Ogil- existed to show factors-no evidence Ogilvie way with is in no inconsistent fast, running away, disobeyed vie as if "drove primary three differ- Wardlow. There are laws, otherwise drove in an traffic first, Ogilvie the two cases: ences between Ogilvie, 527 or erratic manner.” turnaround, unusual legal- simple a executed involved concurring 332. The concern oitr at using ramp, exit ly, an while Wardlow in- express to colleagues our failure overrule over suspect headlong flight on foot a volved Second, Ogilvie appears to be unwarrant- to us wholly bag. Ogilvie, no carrying a in causal ed, importance give far more and to was between turn- connection made case stop. border than if deserves. and the of the around existence Cir.1997) (“[a]pparent efforts avoid the reversal-in-direction as an independent with checkpoints combined other factors initially factor. We note that an individu- generally been found to constitute presence al’s high crime area not is ”); States v. suspicion’ reasonable, ‘reasonable enough to support particular- Medina-Gasca, 739 F.2d 1451 Cir. suspicion ized that the individual in ques- 1984). so, a Even more U-turn. tion has committed or is about to commit Texas, crime. See Brown v. 443 U.S. concluding U-turn this (1979) 99 S.Ct. 61 L.Ed.2d 357 factor, significant case constitutes (holding that an investigatory stop not was note number of circumstances that com- justified when police officers two detained so, it bine make some of which also walking away men from each an other in independent constitute in the rea- alley high an area drug rate of analysis. First, a sonable U-turn trafficking appellant’s activity because “the very a highway different revers- is from activity was no different from the of other ing by using high- a designated direction Still, pedestrians neighborhood”). way highway exit. The use of a exit is “officers are required ignore contrast, frequent legal; in both U- relevant characteristics of a location de- a highway turn on is unusual and often termining whether circumstances illegal. While it is not clear whether the sufficiently suspicious warrant further legal, U-turn here was the other surround- — Wardlow, investigation.” U.S. ing render the circumstances reversal-in- -, 120 S.Ct. at (quoting Adams v. given direction properly one that Williams, 143, 144, 147-48, significant weight our suspi- (1972)). S.Ct. L.Ed.2d analysis.30 cion One of those circum- that the stances the fact two cars made citing “high- of an area as their immediately stopped U-turn and requires crime” careful examination isolated, the side highway court, description, because such a unless drop frequently desert area used to off or properly factually based, limited and can pick up undocumented aliens or contra- easily serve as a proxy for race or ethnici band. Another is that the oc- U-turn ty. District carefully courts must examine just curred a that sign indicating after an testimony the of officers in cases upcoming re-opened. checkpoint had been this, such as and make fair and forth Finally, it highly unlikely is that the rea- offer, right evaluation of they the evidence son for the U-turn was that the cars had consequences. of regardless the We must accidentally passed their exit point. There particularly be careful ensure that only anywhere is one in the area turn-off “high crime” area factor is not used with before the checkpoint, and that turn-off respect neighborhoods entire or commu leads to a private road rather than one nities which minority members of general public might members of the groups regularly go their daily about busi use. ness, specific, is limited to circum rely

We also on the particular characteristics scribed locations where crimes of the area in stopped which the cars after regularity.31 occur unusual In this illegal 30. U-turns bridge, when ... enough "the driver the record is not clear on this does not have unobstructed for 200 an view highway point rely upon possible to allow us to the feet along in both directions the and illegality. traffic thereon.” See Code Cal. Vehicle 665.5, §§ 22105. The Border Patrol officers Harris, 31. See David A. Factors Reason- for (nor did government argue not assert did the Suspicion: able When Black and Poor Means at they probable trial or appeal) had Frisked, Stopped and 69 Ind. L.J. cause to believe that traffic violation had (1994) (noting minority groups “make Although occurred. it appears that driver population all almost in most the coming from the nei- area could neighborhoods police regard high the as ther by see nor be seen someone the turn- areas”). crime around area until after he had the crossed

H39 case, turned tandem in the mid- “high crime” area is an isolat- around the spot in the unpopulated middle ed and highway, pulled dle of a but then off the Thus, an the likelihood desert. together stopped shoulder where crim- the defendants’ explanation for innocent activity inal place, often took makes the if is far less than and actions presence The driving tandem relevant. fact that in a business stop place residential or took plates had may cars Mexicali license area.32 also provide weight, given some additional all having circumstances. While other the tandem Finally, consider ordinarily signifi- plates Mexican no Mexicali license driving as well cance, suspected where the criminal act treated plates. panel giving border-crossing, presence rise to involves independent two contrast, suspicion. reasonable dis may' be foreign plates license afforded rely approach, trict court took a different weight determining whether a driving” Mexicali ing on the “tandem stop is reasonable. solely purposes plates for license tipster the cars described linking CONCLUSION the Border Patrol ones observed case, In this the two cars driven in that, the cir officers. We conclude under by Montero-Camargo and San tandem here, present cumstances both occurrences highway, chez-Guillen made U-turns on a given weight some. direct place at a the view of the border analysis. They do obstructed, stopped officials was brief not, however, fac constitute substantial ly illegal locale used historically tors, collectively. singly either activities, proceeding before back tandem' respect driving, With from had come. direction travel we have held that two or more cars at a it U-turn occurred location where was although in it ing together, not sufficient cars unlikely would have reversed suspicion, may self to establish reasonable they had directions because missed exit. of illegal smug nonetheless “be indicative Moreover, question the vehicles bore activity.” United States v. Rob gling See plates Mexicali license U-turn oc (9th Cir.1989); L., ert 874 F.2d just sign indicating curred after a Medina-Gasca, see United States v. also checkpoint that had been Border Patrol (9th Cir.1984); open. closed for some time was now We Saenz, States v. 646-47 factors, although conclude that these Cir.1978); v. Larios- United States to overwhelming, are sufficient constitute (9th Montes, Cir. 943-44 stop. the suspicion reasonable 1974). However, the circumstances of the result, however, reaching firmly we in the end driving tandem will determine reject any upon ap reliance the is that factor relevant. While two whether ethnicity the pearance or of defendants. intrinsically driving together cars is innoc uous, the We do not consider Renteria-Wolffs here the fact that two cars not also respect populat- agree the locale. With to 32. We with statement in the concur uninhabited areas, people typically "high-crime ed or use of the term areas which rence legitimate (including carry activities areas area” as factor reasonable hike), camp people frequently or we analysis well be "an to trou invitation Wardlow, concern, - U.S. at -, colleagues’ concurring our ble.” But see share agree precisely mere war stories at 676. It is for that reason that more than S.Ct. aspect required of a of to' establish existence that our resolution case unique high-crime As we have stated in the us is conditioned on cir area. before above, text, care As courts with cumstances the locale. noted should examine any specific Moreover, underlying stopped at a the side data such assertion. two cars barren area at courts and law enforcement highway apparently served no both people the sins not to tar purpose other than as a site for criminal must careful isolated, neighbors. activity. The area was in an their situated glancing behavior in at the Border Patrol the newspaper, acceleration, the tan car in.the rear view mirror and then pick- dem driving, the Hispanic appearance, the ing up reading newspaper. furtive glance-is window dressing, de signed get to around opinion our in United In affirming the district ruling, court’s Ogilvie, States v. 527 F.2d 330 Cir. we note agents’ that the initial decision to 1975), where we held that avoiding a investigate the tip pursue and to the two checkpoint by reversing direction is not vehicles was any without knowledge made sufficient to establish suspicion. reasonable part on their ethnicity defendants’ See id. at 332. Hispanic appearance. Agents Johnson Ogilvie just and Fisher is plain observed that appearance only wrong and we when the should Turning overrule it. subsequently caught officers in one’s tracks just Moreover, with the before reaching cars. a law defendants’ enforcement agents enough precisely had is information the kind justify of behav ior that stop properly gives became rise to aware of the before suspicion. defendants’ It likely ethnicity. possible that a Under these motorist circumstances, will so for do entirely legitimate reasons, there is no need remand the matter but to the “eommonsense judgments district court for recon- and infer Instead, sideration of its ences about human decision. suggest we AF- behavior” FIRM maneuver was designed district court’s avoid denial — checkpoint. motion to suppress. Wardlow, Illinois v. -,-, 673, 676, 120 S.Ct. 145 L.Ed.2d KOZINSKI, Judge, Circuit with whom (2000). Ogilvie seems to require that Judges NELSON, T.G. KLEINFELD and the motorist have done something more to join, SILVERMAN concurring: suspicion, arouse like disobeying the traffic laws or driving erratically, What happened in F.2d at this case is perfectly opinion doesn’t explain why clear. It is revealed in a direct answer to those things simple would make it question from more likely the district court: that the motorist was trying to evade the THE Right. COURT: why But did checkpoint. all, After a motorist wishing you stop [the defendants] at that time? to avoid police scrutiny will slink away as THE WITNESS [AGENT JOHN- unobtrusively possible, not peel rubber Well, SON]: stopped them —there’s disappear in a cloud of dust. only-the only reason that especially we— on that side that we have the people majority Ogilvie retains and tries to stop and turn around particular at that distinguish it, but its sadly efforts are un- point, is they’re because convincing. violation of ground The first on which the immigration or some criminal code tries distinguish Ogilvie is the them make[s] not want to be in- so-called U-turn Ogilvie factor: reversed spected by checkpoint. our they try So directions means ramp exit to turn at that point overpass, around and head whereas the defendants here up.1 back used that reckless and exotic maneuver— Maj. U-turn. Op. fact, See at 1138. In That’s the story: whole The patrol border the majority is so with taken the idea that agents stopped two the cars in de- U-turn, defendants made a it uses the fendants travelling were they because had term no fewer than 15 times. turned just around short of the Highway checkpoint, which raised the entirely But nowhere in the record any does plausible inference they up were to no say witness- that defendants made a U- good. else the Everything agents said had Agent turn. Johnson testified that “all contributed to stop-the the plates, license [the passing motorist] said was there was a Reporter’s Transcript, (Dec. 23, 1996). [hereinafter States RT] at 39 Montero-Camargo, No. 96-223 3-IEG-CRIM were no freeway, so there a highway, not of around south turning vehicles couple of they spotted overpasses. When (Dec. or exits RT at [check]point.” the checkpoint was the indicating that sign the U-turn, technical sense in the 1996).2 A advantage “the they took term, Maj. Op. open, see uses majority the turn to really feasible the it’s place where n.30, ends on starts & at 1138 RT checkpoint. the a safely” before winding up around vehicle with the highway, 1996). (Dec. just what This is By direction. at opposite moving in the lane using it the her meant For Ogilvie can be accom- did. contrast, a turnaround off the pulling road, changing exit; it meant for them off the by pulling plished around, area, getting then then back road, turning off-road in the direction majority’s attempt heading highway highway. The driving back onto onto turn- by painting This would salvage Ogilvie direction.3 opposite or testimony agents dangerous ille- here as somehow with the around consistent two upon weight. first came own they of its falls gal that when just highway, vehicles, off they were majority's convincing is the Even less RT at it. See onto way back their making of the to invoke “characteristics attempt 1997).4 (Jan. 6, 1996); (Dec. 23, id. at Maj. Op. factor. distinguishing aas area” opinion, once one Because read the it matter? does 1138. To Why at illegal” just often that the area impression “unusual and get might rid of get zone the difference combat U-turn, Op. of the Maj. south evaporates. Chicago. ma Ogilvie rivaling Prohibition-era this case between facing why a bar freeway, query pause jority does found herself Ogilvie of the in the middle highway barricade: stretch ren center such active were would become vehicles government desert marked Four criminals activity, why nor separating criminal strip median on the parked pick off or drop “to I- stupid as lanes be so would southbound northbound contraband,” aliens or were undocumented markers shaped red 19; cone checkpoint, id., mile of border traffic within northbound cause placed to of road miles lane; signs they have countless two stop when single merge to safely make such ex they be- could placed lights were flashing red going changes. All cars lane. single side stopped. being were

north is that the mystery to this answer only path crime” “high used at 331. She area description checkpoint-she either. avoid the the record her to supported open isn’t overpass and exit, said is this: arresting agents traversed took an the two What ' ' occasions, they lane. had into the southbound merged prior several On precisely done had stopped vehicles directly here is did the defendants What had done-reversed defendants these what the road the nature given analogous, spot where near direction at travelling on a They were on. they were was did neither U-tums). What defendants 23, 1996) ("[H]e (Dec. just RT 10 2. See also agents said illegal, and of the south unusual nor turn around vehicles two had 23, 1996) (Q: (Dec. 1997) (“[T]wo Do (Jan. vehi- at 15 See RT at 4 much. point.”), id. know, just experience, south whether your around you had turned based on cles to turn checkpoint.”). used spot ... is often is a this 6, 1997) Yes, is.”), (Jan. it "A: around? under a U-turn is not a maneuver 3. Such you laws that ("Q: traffic Did he violate Code Vehicle See Cal. law. California of, no.”). I know A: That know of? turning of as "the (defining a U-turn § 665.5 added); (emphasis highway”) upon a vehicle a displayed government argument, 4.At oral McGuire, Cal.Rptr. People there was which disclosed trial exhibits (holding a turnaround (Cal.Super.1978) could vehicles area off-road sizable highway into pulling off the by effected turn around. prohibiting fall under statute driveway did not first became factors, aware that the checkpoint just to make sure that the judges operational-and, ease, was in almost every who review case will approve their the vehicles carrying were balancing contraband or act. agents aliens. The did not testify that I understand that always it’s not possi- they apprehended had ever anyone actual- ble to uncertainty, eliminate and that

ly using spot this as a drop point.5 off weighing balancing and is the stuff of They watched the spot routinely because, many legal doctrines. But what excuse is “That’s expect where we the turnaround to there for resorting to a totality-of-the-cir- be, if around, turn they do because that’s approach cumstances single when a faetor- the only place really where it’s feasible to the right turnaround before the check- turn safely, around point.” at that RT at point-alone justifies the search? And what (Dec. 23, 1996). excuse is this, there for language like which calls for an degree phi-

What this advanced evidence does show-the only lology to comprehend: thing it Ogilvie shows-is that is bunkum: People that, who turn right around We before conclude under the circum- checkpoint generally here, present do stances something have both occurrences hide. Far from distinguishing Ogilvie, [tandem driving and Mexicali license majority’s emphasis plates] “high given on the may be weight crime some direct just area” m illustrates how silly Ogilvie reasonable suspicion is. analysis. only not, thing They however, about do this “area” that leads constitute sub- high factors, incidence of stantial arrests is the pres- either singly or collec- ence tively. checkpoint, which prompts criminals to reveal by themselves turning Maj. atOp. 1139. What on earth does this around-just happened Ogilvie. Had First, mean? consider all hedges and Ogilvie stayed place long (“under qualifiers pres- circumstances enough to catch a people, few more ent ”). here ... some direct weight ...

mild-mannered stretch of might 1-19 purpose What they do guid- serve? What turned a “high into crime area” as well. ance do give? they There are many so surfaces, slippery the human mind can majority’s find contorted efforts to pre- purchase no in wrapping serve an around it. ancient and itself prece- ill-conceived dent be amusing, would were this not such But ponder then the meaning of the serious business. What factors law en- entire passage: These giv- factors be forcement officers may consider decid- en some weight, but not substan- ing to stop question and citizens minding tial factors. only So we not have a multi- their should, own business possible, if test, factor do we ask district carefully clearly circumscribed and articu- courts and in the field weigh lated. When courts invoke factors, multi-factor balance all the we now have differ- tests, balancing of or fact-specific interests ent classes factors-regular jumbo. weighing circumstances, .of this introduces many How regular factors add to make degree troubling of uncertainty un- a substantial factor? And many how sub- predictability into the process; no one can stantial amount to reasonable sus- be sure particular whether a combination picion? clue, I have no which makes me of factors justify will a stop until a court think that on their cops all beats over this has ruled on it. It also creates an incen- circuit will have some figuring trouble it tive for officers to exaggerate or invent out as well.6 It lawyers was persisted one who an area that we have turn at.” arounds RT at (Jan. 1997). characterizing the drop area 14-17 point. off Agent once, description Fisher assented to the give police The advice today is reminis- pressed by when say the court to at what given cent of that once a Russian noble- point was pick up there a "notorious Having man to his horse. been told his delivery,” willing say he was only, “That is wife, dear, hurry gal- "Please home-but don’t every a hammer sees man with a Just as majori- the to side a darker is But there nail, a badge a man with a so recog- problem opinion The Macarena. ty’s verbal as a high of his beat every to corner may see allowing police danger nizes the Kramer, 200 See, e.g., Price v. “high-crime” to area. area as crime an characterize Cir.2000) (9th offi- (police suspicion, 1237, 1247 for reasonable F.3d a basis establish that, ground just stop based on on justify to do to sought proceeds then cers but experi- personal in Torrance was than Boulevard nothing more that Crenshaw As I dis- agents. arresting ‘gang two activi- known for ences of area “high a crime claim even above, agents didn’t ”). cuss to criminal detect Police trained ty’ area, say but let’s crime high a this was the world they look at activity and sup- would this record inWhat they had. good thing, a This is eyes. suspicious agents testi- Both conclusion? port their keep to suspicion this rely we because criminal had detected they only that fied us. who would harm those from us safe in the stopping people after violations repertoire every cop’s rely on But to he’d said agent One How often? area. “high a what is to determine stories war eight over stops in 15-20 been involved to treat oth- on that area”-and basis crime any recall years, “[could]n’t a half grounds for innocuous behavior as erwise have violation a we ... where didn’t me as invi- suspicion-strikes 1996). (Dec. 28, 14-15 RT sort.” at some testimony of two If the to tation trouble.. a doz- “about to agent testified The other made, most, 32 arrests officers but one all period, the same stops en” sufficient a decade is course of during the (Jan. 6, Id. an arrest. led to high crime into a road here to turn 1997). under surveil- area, police then what area hesitation, majority treats Without There are as one? qualify lance wouldn’t wave, it really? but a crime this as that see in our inner cities corners street or so every four months arrest Does an within a month-even crime as much Compare area? high crime make for give to most reluctant I would be week. Thornton, v. States United area into turn to power Cir.1999) year (7th (“In one less than unadorned on their area based high crime 2,500 arrests drug been some there had certainly would I experiences. personal area where the five-block-by-five-block the issue. out decide not reach occurred.”); States incident support to draw majority purports The Cir.1999) 602, 604 Morales, 191 F.3d n Supreme from methodology for its alone, Agent had (“In year past the Court opinion, where Wardlow Court’s illegal aliens approximately detained a lo characteristics “relevant held Can highway.”). stretch on this the reason considered in may be cation” recol- undocumented vague rely on Op. at 1139 Maj. calculus. able here? Do two of the officers lections — at -, Wardlow, (quoting “about “15-20” figures of officers’ 676). point en This misses S.Ct. at incidents, pools of separate reflect dozen” whether the is not question tirely. here, where, as they include do may be taken the area characteristics Are such es- involved? officers were both account, how these characteristics but into anj- tell us sufficiently precise timates opinion In our first are established. I wouldn’t area? about the thing useful Wardlow, the from this interpret language per- so, I could be although thought have methodology for estab adopts a colleagues my But otherwise. suaded of the area the characteristics lishing To questions. pause to ask don’t even recipe Left as the rigorous area, is about because the high crime them, it’s overs Casserole. crime high area. say it’s officers much for me.” It’s too puzzle it out. says: "Don’t to his horse and lop,” he turns Century (Twentieth Fox Twelve Chairs gal- Don't Petya? you Do hear gallop. job, you’ll your 1970). hurry That’s lop, home. worry, opinion says, Not to because police

we take the their word only when Philip WILLIAMSON; Rief; Itzik it’s an “isolated” where people area don't Kirlin; Ronda Painter, Thomas carry legitimate “typically activities.” Plaintiffs-Appellants, Maj. Op. at 1139 n.32. But talking we’re a highway-one here about sees GENERAL DYNAMICS traffic to enough make worth CORPORATION, Defendant-Appellee. government’s trouble. How can an hundreds, area perhaps traversed thou- No. 98-55783. sands, people day every be considered Court of Appeals, States “isolated,” why it that people who Ninth Circuit. on rural highways travel do not “carry on activities”? If legitimate we’re willing to Argued and Submitted Dec. ignore all the people, cars and I suppose April Filed Freeway the Santa Monica is an isolated again, perhaps area too. Then majori-

ty considers the shoulder of the highway

as “isolated” where highway itself is

not. A more contrived distinction is diffi- imagine.

cult to

Perhaps the majority imagines that by

retaining Ogilvie, it eroding avoids Fourth

Amendment liberties. Instead it acceler- process.

ates the patently suspicious Ogilvie

behavior in is the kind of thing we event,

want to act on: a specific It’s

easy to verify. observe and It consists of individual, act deliberate a given require any

does not speculation, impres-

sions, hunches or broad characterizations

about area or a people. class of It

gives rise to a reasonable inference that

the individual taking evasive action has

cause to fear scrutiny. a perfect It’s not

inference; they never But are. it’s vastly objective

more open less to manipu-

lation than the amalgamation of ambiguous

factors from which the majority constructs

founded today. Such founda- concrete,

tions are not of quicksand.

Case Details

Case Name: United States v. German Espinoza Montero-Camargo, United States of America v. Lorenzo Sanchez-Guillen

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 11, 2000

Citation: 208 F.3d 1122

Docket Number: 97-50643, 97-50645

Court Abbreviation: 9th Cir.